Writing in the Winter 2015/2016 issue of the Claremont Review of Books, Prof. Hadley Arkes critiques a common conservative legal approach in defense of natural marriage: that the Constitution is silent on the subject. He shows why natural marriage ought to be defended on substantive grounds.
“As the argument has played out in this vein, the Constitution itself says nothing about marriage, and therefore judges have no constitutional ground on which to proclaim any ‘constitutional right’ bearing on marriage. Therefore, the only rightful course for the judges is to return the matter to the political arena, where a self-governing people can decide the laws they impose on themselves. The inclination of judges to take this matter away from the voters and claim it exclusively for their own hands is taken as a flexing of ‘raw judicial power.’ As Justice Antonin Scalia put in in his dissenting opinion in Obergefell, the decree handed down on same-sex marriage ‘says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.’
“And yet, the text of the constitution contained no mention of marriage when the Court decided Loving v. Virginia (1967) and struck down the laws that barred marriage across racial lines. Nor did the Constitution say anything about schools when the Court struck down racial segregation in the public schools in Brown v. Board of Education (1954). Marriage and schools have become the business of the federal courts over the years as they supplied instances in which personal freedoms were restricted by the states in ways that could be judged as wrongful or unjustified.”
“But the Court in Loving struck down the laws barring marriage across racial lines as just another one of those cases in which the law was drawing adverse inferences about people on the basis of race, and creating then disabilities based on race. Race was quite irrelevant to the capacity of any person to understand the kind of commitment entailed in a marriage, or to engage in the sexual act that was taken as one of the defining marks of a marriage ‘consummated.’ But in the most unaccountable way, the passion seems to have swept through the leading law schools and law firms that the refusal to accept the marriage of two men or two women offers instances of the same wrong in principle that marked the laws that forbade interracial marriage. That is where the argument had to be met.
“That question led to the heart of the issue, and Roberts caught it when he made the telling point that ‘[t]he real question in these cases is what constitutes ‘marriage.” But then he muddied the waters in a manner all too familiar: it was either the matter of what constitutes marriage ‘or—more precisely—who decides what constitutes ‘marriage’?’ The substantive question was quickly converted into the question of procedure, of judges taking things out of the hands of the voters and the legislators they elect.”
Read the whole piece, “The Self-Made Trap,” here.